Qu v Blacktown City Council

[2010] NSWLEC 1282

Land and Environment Court

of New South Wales

CITATION:

Qu v Blacktown City Council [2010] NSWLEC 1282

PARTIES:

APPLICANT
Gang Qu

RESPONDENT
Blacktown City Council

FILE NUMBER(S):

10521 of 2010

CORAM:

Fakes C

KEY ISSUES:

DEVELOPMENT APPLICATION :- deemed refusal of a brothel on the basis of proximity to sensitive land uses and the public interest; time-limited condition imposed; land uses not found to be sensitive; no finding of fact in the public interest; time-limited consent unreasonable in the circumstances; appeal upheld

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Blacktown Local Environmental Plan 1988

CASES CITED:

Weynton v Rockdale City Council [1999] NSWLEC 273
Marpet Enterprises v Eurobodalla Shire Council [2000] NSWLEC 159
Wang v Blacktown City Council [2009] NSWLEC 1044
Martyn v Hornsby Shire Council [2004] NSWLEC 614
Huang v Parramatta City Council [2009] NSWLEC 1401
Wei v Parramatta City Council No 2 [2010] NSWLEC 1107
FRG Investments Pty Ltd v Bankstown City Council [2010] NSWLEC 1228
Piao v Willoughby Council [2008] NSWLEC 1407
Wendy Wei v Holroyd City Council [2007] NSWLEC 163
New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154
Venus Enterprises P/L v Parramatta City Council LGRA 43

DATES OF HEARING:

22/09/2010

 
DATE OF JUDGMENT: 

20 October 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr C Gough (solicitor)
SOLICITORS
Storey & Gough

RESPONDENT
Mr T O'Connor (solicitor)
SOLICITORS
Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

20 October 2010

10521 of 2010 Qu v Blacktown City Council

JUDGMENT

1 COMMISSIONER: This is an appeal made under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Blacktown City Council (the Council) of Development Application No. 10-1024 for the change of use of an existing warehouse building into a brothel with associated alterations and additions at 10 Vangeli Street Arndell Park (the site).

The site and locality

2 The site is 10 Vangeli Street Arndell Park [Lot 10 DP786328] and is located within the Arndell Park industrial area. This area is characterised by predominantly industrial and manufacturing businesses. The area contains a small number of retail and commercial land uses including small-scale food outlets.

3 The site currently contains a part one part two storey warehouse building of corrugated steel and brick construction. The front or eastern portion of the building facing Vangeli Street comprises two storeys containing office space, toilets, a kitchen and storage facilities. The majority of the building is a single storey factory floor/warehouse space with concrete floor, metal walls and roof to the height of two storeys. The warehouse is currently empty.

4 The eastern façade contains one doorway; the northern façade contains two doorways and two large roller doors to almost the height of the building.

5 Access to the site is via a ramped driveway from Vangeli Street. The northern portion of the site is a paved hardstand area with off-street parking for 11 vehicles. There are lockable gates on the driveway.

6 The eastern portion of the site, forward of the building and to the north of the driveway is informally landscaped and contains a number of mature trees.

7 Vangeli Street runs off Holbeche Road, a through road that provides the main access to the Arndell Park industrial area. Vangeli Street connects Holbeche Road to several other streets, all of which are no through roads.

8 The adjoining property to the north is an industrial complex containing a number of industrial suites. The closest of these to the site is a business that wholesales and retails meat. The property to the south is another industrial business. Both of these adjoining properties have off-street parking.

The proposal

9 The applicant is proposing to convert the existing industrial building into a brothel. The building will retain its existing external appearance with no changes proposed to the existing doors and windows including the two large roller doors.

10 The internal alterations include the construction of 7 working rooms, waiting rooms, laundry, staff areas and toilets. The north-western corner will be used as an internal parking area for 3 staff vehicles accessed via one of the large roller doors. The other roller door will be retained but remain locked and inoperable.

11 The external parking area will be reconfigured to provide 10 off-street parking spaces including one for a person with a disability.

12 It is proposed that there be one sign only showing the number ‘10’ and the word ‘open’. This will be fixed above a window on the eastern end of the northern façade. The sign will be illuminated only during the hours of opening.

13 Access from the car park will be through an existing door on the northern façade into an area secured by a security door and fitted with a security camera.

14 The brothel is proposed to be open 7 days per week between the hours of 9:00am until 4:00 am the following day. There will be a manager on site during the operating hours and the staffing will be in two shifts with the maximum number of workers being six and the maximum number of rooms in use to be six.

15 The applicant has prepared a Plan of Management (PoM) that details operational aspects. There will be security lights and surveillance cameras fitted externally and surveillance cameras fitted internally. These will be monitored from the office. It is proposed that a security firm be engaged to conduct regular patrols of the site and its surrounds between the hours of 5.00 pm and one hour after closing.

Background to the appeal and the issues

16 The development application including the plans, Statement of Environmental Effects, Plan of Management, BCA Building Audit Report and a Waste management Plan were lodged with council on 19 May 2010. It was placed on notification to 22 nearby landowners and occupiers between 15 June to 29 June 2010.

17 Council received 8 objections as a result of the notification and a further 5 were received after the closing date. Council also received 2 petitions, one containing 54 signatures and the other containing 792 signatures.

18 The objectors raised the following issues as reasons for refusing the DA.

• Religious and moral objections to prostitution
• Attraction of criminals and drug users
• Detrimental impacts on businesses where families with children attend
• Decline in trade with resulting increased unemployment
• Reduction in property values and rental opportunities
• Attraction of transport workers who will need to park their trucks in the street
• Will not assist in reducing street prostitution
• Lowering of the reputation of the Arndell Park industrial area
• Safety of clients and workers of surrounding businesses
• Impacts of advertising and signage

19 The DA was internally referred to council’s Building Branch, Engineering Branch and Environmental Health Unit. None of these units had any objections to the proposal but recommended conditions of consent be imposed.

20 In a summary of a deputation to council’s Planning and Development Committee by an objector on 25 August 2010, a recommendation was moved and carried that the DA be refused on the basis of its incompatibility with nearby land uses and in the public interest.

21 An undated assessment report from council’s Planning and Development unit provides detailed comments on the issues raised by the objectors and considers the statutory requirements and internal referrals. The report recommends the approval of the proposal with appropriate conditions.

22 The Notice of Determination, dated 9 September 2010, advises that DA No 10-1024 is refused on the following grounds:

1. Incompatibility with some nearby land uses, particularly the nearby sandwich shop on the corner of Vangeli Street and Holbeche Road and the butcher outlet at 8 Vangeli Street, as these land uses attract a range of patrons, including those that could be detrimentally offended by the operation of the brothel.
2. The brothel is not considered to be in the public interest.

23 The council’s contentions relate to proximity to sensitive land uses. Specifically, the site is adjacent to a premises used for the purpose of a wholesale butcher that also carries out sales to the general public and is attended by women with children. In addition, the site is located in proximity to a premises used for the purpose of providing residential accommodation to youths who are considered vulnerable. The council asserts that the youths attending this facility may purchase food from a food outlet where they may have contact with staff or patrons of the brothel. The council also contends that the proposal is not in the public interest due to the number of objections received.

Police report

24 Section 7, Part E of Blacktown Development Control Plan (BDCP) describes other requirements with respect to brothels including consents and matters for consideration by council, and the role of other agencies including the NSW Police Service and the Local Area Command.

25 It is noted that the council omitted to send the DA to the local area command as required by the BDCP. This was rectified and a “safer by design” evaluation was conducted on 15 September 2010. Due to circumstances beyond the council’s control, the police report was not available for the hearing and the hearing was adjourned pending that report. It was agreed by the parties that the report be made available to any interested objector for their consideration. The Court received the police report and submissions on its content on 14 October 2010. As a result of that report, council also prepared revised ‘without prejudice conditions of consent’.

Planning controls

26 The site is zoned 4(a) (General Industrial Zone) in the Blacktown Local Environmental Plan 1988 (BLEP). Brothels are permitted in this zone with consent. Brothels are only permitted in zone 4(a) and zone 4(b) (Light Industrial Zone).

27 Brothels are specifically covered in cl 42A of the BLEP. This clause states:

(1) Despite any other provision of this plan, development for the purpose of a brothel must not be carried out if the relevant premises are:
(a) within a straight line distance of 300 metres of land zoned for residential, commercial or public open space purposes; or
(aa) within a straight line distance of 200 metres of a school or child care centre; or
(ab) within a straight line distance of 200 metres of any other premises in relation to which consent has been granted for development for the purpose of a brothel, or
(b) adjacent to any property used or partly used for residential purposes; or
(c) near or within view from any church, hospital, community facility or public open space or any place regularly frequented by children; or

(d) within 100 metres from a road zoned Special Uses – Arterial Road and Arterial Road Widening or Special Uses – Local Road and Local Road Widening.
(2) In determining an application to carry out development for the purpose of a brothel, the council must consider the following:
(a) the potential cumulative impact of like uses in a neighbourhood;

(b) whether the operation of the brothel is likely to cause disturbance in the neighbourhood when taking into account other brothels operating in the neighbourhood or other land uses within the neighbourhood involving similar hours of operation;

(c) whether or not the brothel is in keeping with or is likely to substantially alter the character of its locality; and
(d) whether the brothel is likely to put at risk members of the community or its clientele or service providers.

28 Section 6, Part E ‘Development in the Industrial Zone’ of the Blacktown Development Control Plan 1992 (BDCP) deals with ‘Brothels in Industrial Zones’. Paragraph 3 of 6.1 Introduction/ Background states the following:

Council considers that the potentially most harmless location for brothels relative to sensitive landuses such as schools, churches, community uses, parks, shops and like uses would be within some of the industrial areas of the City and not shopping centres or residential streets.

29 Clause 6.2 of BDCP states:

The principal aim of this DCP is to reinforce the need for distance separation between brothels and other incompatible landuses and nominate relevant criteria that Council must have regard for in determining Development Applications for brothels.

30 Clause 6.6 sets specific requirements and development standards for the location of brothels [similar but not identical wording to cl 42A(1) of BLEP], access, parking, security measures, measures to mitigate the impact of any proposed external advertising and measures to contain potential noise and other disturbances created by vehicular and pedestrian traffic.

31 In addition to the development standards, Part E, s 6 of the BDCP includes maps of those industrial areas where brothels are permissible with boundaries set to omit any property that falls fully or partially within the area in which brothels will be excluded due to the 300m separation from residential, commercial or public open space zones. The relevant map for the site is Arndell Park. The site is located within the mapped area in which brothels are permitted.

Evidence

32 The hearing was conducted on site. Oral evidence was given by 7 owners/occupiers/representatives of nearby industrial premises in Arndell Park.

33 A resident of Quakers Hill also gave evidence in support of the refusal of the brothel.

34 All objected to the proposed development for one or more of the following reasons:

• the area was not zoned for brothels when land purchased/ business commenced; lack of consultation regarding the rezoning of the land
• lack of consultation by council and its failure to follow procedural requirements with respect to referring the DA to the police
• undesirable impacts on families, especially women and children, attending the butcher at 8 Vangeli Street and the youth centre in Holbeche Road
• offending of moral and religious beliefs
• safety concerns for employees, particularly young women, of nearby industrial premises, as well as for the general public
• concerns about security with the potential financial consequence of having to upgrade security measures of nearby premises
• concerns for employees who may be required to travel past the premises
• likely increases in crime, assault and vandalism should the brothel be approved
• if approved, some businesses may move thus leading to vacant premises and with a flow on effect to other businesses that are reliant on nearby businesses
• the setting of an undesirable precedent
• an unacceptable change in a close knit group of businesses
• loss of property values
• parking and traffic congestion
• the proposal is not in the public interest

35 These oral submissions reflected the concerns raised in written submissions to council.

36 Whilst unable to attend the on-site hearing, additional material was attached to a written submission from Ms Munro, of Impact Youth Services which has an office on the first floor of 35 Holbeche Road. This material, from their web site, outlines the services they provide.

37 No town planning or other expert witnesses were in attendance as the main contentions relate to the potentially ‘sensitive’ nature of nearby premises and the impact of the proposed development on the public interest.

The site view

38 We inspected the exterior of the site and the proposed positions of security lighting and surveillance cameras were pointed out. The exterior of the building reads as an industrial building and it does not stand out from any other except that the words “no brothel” have been spray painted over many surfaces.

39 The location and parking arrangements of a number of objectors’ premises to the south of the site were inspected. The driveway to 12 Vangeli Street is screened to an extent by vegetation on the site and the building at 12 is set back from the street with parking facilities forward of the building. Objectors’ premises in Lidco Street and Smoothy Place are not in direct view of the site but anyone attending those premises would travel past the site.

40 The exterior of 8 Vangeli Street was viewed. It was noted that there is some off-street parking and that the entrance to the meat wholesaler/retailer is located on the northern side of that portion of the industrial complex and not in direct view of the site. The eastern/ street portion of 8 Vangeli Street is landscaped and contains several trees that provide screening in addition to that provided by the buildings. The vehicular entrance used by customers is not immediately adjacent to the site although there is a driveway for deliveries close to the boundary but this is also screened to some extent by trees and shrubs. I note the meat wholesaler/retailer’s opening hours are 7.00 am-5.00 pm Monday to Friday and 6.00 am until 1.00 pm on Saturdays.

41 The premises at 5 Vangeli Street were viewed in order to determine the extent to which the site is visible from these premises. The site is well screened by vegetation on the site and by structures on 5 Vangeli Street however it is likely that the proposed sign will be visible through a gap in the tree canopy.

42 There is a food outlet that services the industrial area located on the north-eastern corner of Vangeli Street and Holbeche Road. There are two pedestrian entrances to this shop, both of which generally present to Holbeche Street. The proposed sign for the site is likely to be visible from the north-eastern corner of Vangeli Street.

43 The offices of Impact Youth Services are located on the first floor of 36 Holbeche Road. The site is not visible from the offices of this organisation. The entrance to these offices is off a carpark to the east with vehicular entry off Holbeche Road.

44 From a distance, we viewed the location of an objector’s business premises at 53 Holbeche Road to the east of the corner with Vangelis Street close to 300m from the site.

Submissions
Planning controls

45 Mr Gough for the applicant contends that on all levels the development should be approved as the site is in one of the only two zones in the Blacktown local government area in which brothels are permitted with consent. He asserts that Blacktown City Council, unlike many councils, has very specific controls with respect to brothels.

46 He states that the proposal meets the locational conditions specified in cl 42A(1) of the BLEP and cl 6.6.1 of Part E of the BDCP. Specifically, it is beyond a straight line distance of 300m of land zoned for residential, commercial or public open space purposes and 200m of a school or child care centre; there are no other brothels within a 200m radius; it is not adjacent to any property used or partly used for residential purposes; it is not near or within the view of a church, hospital or other facilities at which children regularly frequent; and it is beyond the road types specified in 42A(1)(d).

47 Mr Gough asserts that the proposal does not conflict with the considerations listed in cl 42A(2) BLEP. Specifically, as this is the only brothel proposed at this stage in the area, there is no cumulative impact and there are no other land uses in the area involving similar hours of operation. He contends that the site will appear to passers by as a warehouse/industrial building and that it will not substantially alter the character of the area. He considers that the security and other measures proposed are such that the brothel is unlikely to put anyone in the community or its employees and clientele at risk.

48 With respect to the BDCP, Mr Gough contends that as well as meeting the locational requirements specified in cl 6.6.1 of Part E, the proposal meets the other specific requirements and standards for brothels including discrete access and parking for the maximum number of workers and rooms that would operate as well as a manager. The Plan of Management addresses cl 6.6.4 – security measures and cl 6.6.6 – measures to contain potential noise and other disturbances created by vehicular and pedestrian traffic. The proposed sign complies with cl 6.6.5 and will only show the number ‘10’ and the word ‘open’.

49 Apart from complying with council’s planning controls, Mr Gough contends that the proposal also complies with the planning principle for the location of brothels published in Martyn V Hornsby Shire Council [2004] NSWLEC 614 at para 18.

50 Mr O’Connor for the council agrees that whilst many locational conditions are met by this proposal, he stresses that the main issues in contention are the potentially ‘sensitive’ premises of the adjoining butcher shop and Impact Youth Services. He contends that the Court must consider whether these premises are sensitive land uses and thus the compliance of the proposal with part of cl 42A(1)(c) BLEP and cl 6.6.1(c) BDCP …”any place frequented by children”.

Sensitive land uses

51 There is dispute between the parties as to whether or not the adjacent meat wholesale/retail business and nearby Impact Youth Services (IYS) premises are sensitive land uses.

52 Mr O’Connor refers to the written submissions and the oral evidence of the objectors. Regarding the meat business, the submissions are that families/ women with their children regularly visit the premises particularly on Saturdays and in school holidays. Whilst there is some off-street parking, parking on the street may be necessary which may necessitate children walking past the site.

53 With respect to Impact Youth Services, Mr O’Connor accepts that the site is not visible from these premises but refers to the submission from Ms Munro of IYS who states that their clients often have a long history of trauma as a result of neglect, physical and sexual abuse.

54 Mr O’Connor asserts that the Court should consider whether the degree of separation of the site from both of these premises is sufficient to satisfy the requirements of cl 42A(1)(c) BLEP and cl 6.6.1(c) BDCP.

55 Mr Gough tendered evidence by way of a letter from the council’s solicitors that neither the meat retailing/wholesaling business at 8 Vangeli Street or Youth Impact Services have development consent to operate. With respect to the meat business, the letter states “The applicant [meat business] was requested to withdraw the DA on the basis that the retailing of meat constituted a prohibited use in the 4(a) general industrial zone.”

56 Mr Gough contends that apart from not having development consent to operate, both premises are prohibited from the zone. Under Zone No.4(a) (General Industrial Zone) in the BLEP, the following development is prohibited: “shops (other than those ancillary to and used in conjunction with manufacturing purposes permissible in this zone or which serve the daily convenience needs of the workforce of the industrial area)” and “commercial premises (other than those ancillary to and used in conjunction with a purpose permissible in this zone or which serve the daily convenience needs of the workforce of the industrial area)”. Because of this, Mr Gough considers that little if any weight should be given to the concerns raised by these objectors. He also considers that if the proprietor of the meat business rests on their assertion that part of their trade is to the local workforce, it then follows that there are unlikely to be many children in attendance as the local area is an industrial area.

57 Mr O’Connor relies on Weynton v Rockdale City Council [1999] NSWLEC 273 where Pearlman J at para 25 considered that the lawfulness or otherwise of a land use was not relevant, rather that land was being used for a particular purpose.

Findings - Planning controls and sensitive land uses

58 The proposal is a permitted use within one of the two zones specified in the BLEP. The proposal meets the locational conditions specified in cll 42A(1)(a)(aa)(ab)(b)(d) of the BLEP and cll 6.6.1(a)(b)(d) of Part E of the BDCP. The BDCP further refines the locational parameters for brothels through the mapping of the required distances from land zoned residential, commercial, public-open space and specified road types.

59 Therefore as a result of compliance with these locational elements of the BLEP and the BDCP, there are no grounds on which to reject the proposal on those elements.

60 One of the main issues between the parties is whether the meat wholesaling/retailing business and Youth Impact Services are captured by cl 42A(1)(c) of BLEP and cl 6.6.1(c) Part E BDCP – in particular, the wording “ any place regularly frequented by children” and could therefore be considered as ‘sensitive uses’ as the council states in its contentions. It is accepted by both parties that there is compliant separation from the other ‘sensitive uses’ referred to in those clauses of the BLEP and BDCP, that is, any church, hospital, community facility, public open space, school, childcare centre.

61 I was taken to a number of cases where appeals regarding the location of brothels in proximity to sensitive land uses were dismissed or required further submissions. These included Marpet Enterprises v Eurobodalla Shire Council [2000] NSWLEC 159 where the land uses were residential and a skating rink; Weynton v Rockdale City Council [1999] NSWLEC 273 – a church, railway station, bus interchange, library; Wang v Blacktown City Council [2009] NSWLEC 1044 – a church. However, the circumstances of these matters were quite different to this appeal before the Court.

62 With respect to Youth Impact Services, the written submission from Ms Deborah Munro states “The children and young people in our care visit our office on a regular basis for a variety of reasons.” As Ms Munro was unable to attend the hearing and no other representative from IYS attended, there was no opportunity to determine the number and distribution of visits from children/ young people to the IYS premises and whether or nor they were unaccompanied.

63 One of the objectors in his written submission, states, “The driveway of the brothel will be approximately 180 metres away, and in direct line of sight of Impact Youth Services Pty Ltd…” Despite this assertion, the parties agree that YIS is entered off Holbeche Road and no part of that premises has a view of the site. Whilst the distance was not measured, the objector’s estimate seems reasonable.

64 In council’s statement of contentions, contention 2(iv) states “The youths attending Impact Youth Services often use the take away food shop at No. 36 Holbeche Road, Arndell Park where they may have contact with the staff or patrons of the brothel.” In reading the written submissions from the objectors and the report of council’s planners in reply, I can find no evidence of this assertion.

65 I find it unlikely that there will be any impact on anyone attending the premises of Youth Impact Services that would warrant the refusal of the proposal. For anyone arriving by car, they are highly likely to use the car park adjacent to the entrance to the YIS. If anyone arrives by public transport, they will arrive from Holbeche Road. If they choose to visit the food outlet on the corner of Holbeche Road and Vangeli Street, they are likely to use the entrance to the shop closest to the entrance to YIS, that is, to the east and not in any view of the site. Even if they used the entrance to the shop on its western side, the view down Vangeli Street would be of the sign only. Given that Vangeli Street does not lead to anything other than a portion of an industrial estate, I can see no reason why anyone attending YIS would walk past the premises or even know that there was a brothel in the vicinity. As stated above, no part of the site is visible from any part of the YIS premises.

66 With respect to the meat business at 8 Vangeli Street, not withstanding the evidence that the business appears to be operating without consent or that children may attend with their parents, I find that the premises are not reasonably classified as a ‘sensitive use’ or a place ‘regularly frequented by children’ to an extent that would warrant the refusal of the appeal before the Court. In the planning principle published in Martyn v Hornsby Shire Council [2004] NSWLEC 614, Roseth SC at para 18 in part states

Brothels should not adjoin, or be clearly visible from schools, educational institutions for young people or places where children and adolescents regularly gather. This does not mean, however, that brothels should be excluded from every street on which children may walk.

67 This is relevant in this instance. A meat wholesaling/retailing business in an industrial area could not reasonably be considered a place where ‘children and adolescents regularly gather’. 8 Vangeli Street has off-street parking facilities as does the site. The entrance to the site is well screened by vegetation on the street frontage of both properties. The door to the site is located on the northern side of the building off the site’s car park and not visible from the meat business at 8 Vangeli Street. Even if any child attending the meat business has to walk past the site it is highly likely that an adult will accompany the child. Assuming the graffiti is removed from the building, the site will appear as an industrial warehouse and will have nothing external to identify it as a brothel. From the staffing arrangements for the brothel, the busiest times are likely to be after the close of business for the meat wholesaler/retailer.

68 I therefore find that the proposal does not offend cl 42A(1)(c) of the BLEP and cl 6.6.1(c) of the BDCP and therefore should not be refused on this basis.

Submissions
Objector concerns and the public interest

69 The general concerns of the objectors are given in paras 18 and 34 of this judgment. The majority of the concerns go to the morality of the proposal, fears of an increase in criminal activity and therefore concerns about safety and security of workers and business premises, and potential loss of business and negative impacts on the amenity of the area. These concerns go to the public interest.

70 The matter of the petitions was raised. As stated above, council received 2 petitions, one containing 54 signatures and the other containing 792 signatures. It transpired that these petitions had been signed on the day of the federal election, presumably at polling venues. The parties agreed that as the circumstances surrounding the making of the petitions are unclear, little weight should be given to them. I agree with the parties on the matter of the petitions and little if any weight will be given to them.

71 Attached to one written submission is a “Public Interest Review” prepared by Mr Nicholas Mamouzelos a former police officer, National Crime Authority and ICAC investigator. Mr Mamouzelos was not present however he is known to the Court as he has appeared as an expert witness in a number of other matters relating to brothels. His ‘Public Interest Review’ contends that there is a concentration of brothels within the locality to a point where clustering is an issue. He also states that brothels have demonstrated a significant impact on crime and have a tendency to generate criminality. Mr Gough contends that no weight should be given to this ‘public interest review’ as it contains no substantiated information relevant to this site.

72 Mr Gough referred to Huang v Parramatta City Council [2009] NSWLEC 1401 and Wei v Parramatta City Council No 2 [2010] NSWLEC 1107, both matters in which Mr Mamouzelos gave expert evidence. In both of these matters, the Commissioners found his evidence to be unsubstantiated opinion of a general nature and not site specific. As Mr Mamouzelos’ ‘Public Interest Review’ of 10 Vangeli Street does not contain site specific and validated facts, I agree with Mr Gough and no weight will be given to this submission. Mr O’Conner contends that the council relies on the police report and does not press Mr Mamouzelos’ submission.

73 The “safer by design” evaluation in the Police Report dated 15 September 2010 is silent on any link between criminal activity and the operation of brothels in the Blacktown Local Area Command. The report raises no concerns about the locality but focuses on recommendations for improved lighting, the installation of a back to base alarm system, the provision of duress buttons throughout the building, internal signage and the reconfiguration of some of the rooms.

74 A document titled “Objector’s Response to Police Report/Security” was forwarded to the Court by council however this response makes no mention of the police report but raises general concerns about safety and security of the objector’s business. These concerns are similar to those raised by a number of objectors.

75 Notwithstanding the fact that the police report finds no problems with the location of the brothel, Mr O’Connor submits that the council is concerned that the police report is not a comprehensive report and as such considers the application should be refused. However, if the Court finds otherwise, the council considers it would then be appropriate to impose a time-limited consent for 12 or 24 months. As a result of the police report, council has filed a revised set of ‘without prejudice conditions’ to replace those originally filed on 15 September.

76 Several new conditions have been included in these revised conditions. They appear to reflect the recommendations made in the police report as well as the time-limited consent (condition 15). Condition 15 is opposed by the applicant. I note that the original conditions do not include a time-limited condition of consent.

77 The intent of condition 15 is to enable specific complaints or issues with the Plan of Management to be addressed.

78 Mr O’Connor contends that such a condition is consistent with s 7.1 Part E BDCP. This section is the same as cl 42A(2) of the BLEP given in para 27. The BDCP goes on to state that:

All development consents granted to brothel applications shall be initially limited to a period of 12 months with the majority of approvals issued as deferred commencement consents pending the submission of evidence regarding satisfactory security measures. At the completion of this period, Council will re-evaluate the proposal in terms of any complaints received regarding the approved operations, and compliance with any conditions of development consent.

79 Mr O’Connor submits that this approach is consistent with that taken in FRG Investments Pty Ltd v Bankstown City Council [2010] NSWLEC 1228 where Morris C imposed a one year trial period consistent with Bankstown Council’s DCP. This case involved a new brothel in an industrial area. Mr O’Connor quotes from para 21 of that judgment which included the relevant part of that DCP which states “In most circumstances, any consent granted to a brothel will have an initial maximum life of one year.”… He considers that as the Blacktown DCP uses the words “All development….shall be initially limited to 12 months”…

80 However, the council also accepts that such a condition is not always imposed but considers the circumstances of this case, particularly the substantial opposition, warrant its imposition. Mr O’Conner states that the period could be extended to 24 months in recognition of the establishment costs to be incurred by the applicant.

81 Mr Gough for the applicant contends that the safety and security issues do not warrant the refusal of the development application or the imposition of a 12 month trial period.

82 The applicant’s position is based on the fact that the conditions filed on 15 September did not seek to limit the period of operation. Mr Gough submits that it is unreasonable for the council to impose this condition on the alleged failure of a state government body to undertake what council considers should have been a more rigorous assessment. He contends that cl 7.2, Part E of the BDCP has been complied with and that the police report states that the assessment has been undertaken pursuant to the NSW Crime Prevention Guidelines introduced by the Minister for Planning in 2001.

83 Mr Gough cites Piao v Willoughby Council [2008] NSWLEC 1407 where Roseth SC agreed with the applicant that notwithstanding the provisions of the DCP, a time limited approval of 12 months was unreasonable given the extent of the works to be undertaken.

84 In response to Mr O’Connor’s citing of Morris C in FRG, Mr Gough states that the circumstances of that matter were quite different to this appeal in that the applicant in that matter agreed to the conditions of consent and that the location of that brothel was within an industrial complex with many units.

85 Mr Gough refers to the decision in Wendy Wei v Holroyd City Council [2007] NSWLEC 163 where Hussey C considered the imposition if a similar condition said to be required to enable the opportunity for any complaints to be reviewed and to determine compliance with the conditions of consent. This condition arose because of a provision in the Holroyd DCP – similar to the one in this matter.

86 In Wendy Wei Commissioner Hussey found at paras 34 and 35 it was unreasonable to exercise the discretion provided by the clause in the DCP as the conditions required the brothel to operate in accordance with a Plan of Management and that council had other powers to ensure compliance with conditions of consent.

87 In this matter, Mr Gough contends that there is no evidence from the council’s planners, the objectors or the police to link criminal activity with the proposed development and as a result, the development should proceed without a time-limited condition.

88 Section 79C(1)(e) requires that I consider the public interest. The community responses are aspects of the public interest. However, I concur with Lloyd J in New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 where at para 61 he states

61 In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area ( Dixon at [53]). In Broad , de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use.

89 Whilst the matter before Justice Lloyd was a proposal to establish an Islamic house of prayer, the essence of the finding applies to the fears and concerns expressed by the objectors to a brothel at 10 Vangeli Street. The fears in this instance are that there will be an increase in crime, drug use and vandalism, and that the users of the site will pose a risk to women and children in the vicinity. Whilst I accept that these fears are genuinely and strongly held, there is no objective evidence before the Court to support these concerns and therefore no grounds for refusal of the proposal based on these fears.

90 Roseth SC in Martyn states:

There is no evidence that brothels in general are associated with crime or drug use. Where crime or drugs are in contention in relation to a particular brothel application, this should be supported by evidence.

91 In this matter, there is no evidence to support the contentions of the objectors that this proposed developed will lead to an increase in criminal activity and other antisocial behaviour. As stated in para 72 I give no weight to the ‘public interest review’ provided by Mr Mamouzelos as it contains no substantiated information relevant to this site and there is no clustering of brothels in this area.

92 Lloyd J in New Century at [62] goes on to say

A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79(C)(1) of the EP&A Act…Where there is no evidence to support a rational fear it will be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear ( Dixon at [71]).

93 This conclusion could apply to the submissions of several business owners who stated that should the brothel be approved, they are likely to relocate their businesses due to their concerns that the brothel will have a negative impact on the amenity of the area or that the proposal offends their beliefs.

94 In terms of the moral issues, in Venus Enterprises P/L v Parramatta City Council LGRA 43 at 69-70 Cripps J states:

I am not persuaded, as a matter of law, that matters of taste and morality must necessarily be put to one side when determining whether or not a development is appropriate. It must always be a question of fact whether the amenity of a neighbourhood will be or is likely to be adversely affected by a development. It is not difficult to envisage a development which may cause such great offence to a significantly large part of a community that for that reason it ought not to be permitted on town planning grounds. I have no doubt, however, that the Court ought never to allow its own personal view of matters of taste or sexual morality to be a substitution for the evidence or to fill a vacuum left by the evidence. It is in this sense that it could be said it is not for the Court to impose standards of morality.

95 While a number of local objectors are clearly morally offended by this proposed development, however given its location in an industrial area and the anonymous appearance of the building (in the absence of the graffiti) I do not consider it to be something that would cause ‘great offence to a significantly large part of the community’ such as to warrant its refusal. As stated by Cripps J above, it is not for the Court to adjudicate on moral issues. There is no finding of fact that this development is likely to adversely affect the amenity of the neighbourhood. Whilst I acknowledge the strongly held convictions of many of the objectors, these are not grounds for the refusal of this proposed development.

96 With respect to condition 15 regarding a time-limited approval, I find, as did Hussey C in Wendy Wei, that there are no facts before me to justify the exercise of the discretion under the BDCP to impose a time-limited condition of consent. As previously stated, the proposal meets all locational requirements of the zone, the BLEP and the BDCP. I do not consider the meat wholesaler/retailer to be a sensitive use or that the clients of Youth Impact services will be adversely affected. The applicant has prepared a detailed Plan of Management and agrees to the imposition of other conditions regarding fencing, lighting, internal layout and additional security measures as recommended in the police report. As Hussey C indicated, council has other powers to enforce compliance with conditions of development consent.

Conclusions

97 Having regard to the matters to be considered in s 79C of the Act, and as a result of the foregoing, I find that the application before me is permissible. I find that the amended Plan of Management and the revised conditions of consent, with the exception of condition 15, provide appropriate controls on the operation of the premises.

98 The Orders of the Court are:

1. The appeal is upheld.
2. Development consent is granted for Development Application No. 10-1024 for the change of use of an existing warehouse building into a brothel with associated alterations and additions at 10 Vangeli Street Arndell Park subject to the amended Plan of Management and the revised conditions of consent with the exception of condition 15.
3. The final conditions of consent, and if necessary the Plan of Management, are to be amended and are to be lodged electronically with the Court by close of business 25 October 2010 and both the conditions and the Plan of Management will be appended to the Orders.
4. Exhibit 1 is returned.

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J Fakes
Commissioner of the Court